Dennie v. Metropolitan Medical Center

• Decision Date: 18 June 1985
• Docket Number: Nos. C0-84-2016,C4-85-117,s. C0-84-2016
• Citation: 369 N.W.2d 552
• Parties: Francis L. DENNIE, Appellant, v. METROPOLITAN MEDICAL CENTER, Respondent.
• Court: Minnesota Court of Appeals

Page 552

369 N.W.2d 552

Francis L. DENNIE, Appellant, v. METROPOLITAN MEDICAL CENTER, Respondent.

Nos. C0-84-2016, C4-85-117.

Court of Appeals of Minnesota.

June 18, 1985.

Review Granted August 29, 1985.

Syllabus by the Court

The trial court erred when it suppressed the testimony of appellant's expert witnesses and subsequently dismissed appellant's action with prejudice for failure to state a prima facie case.

Barbara J. Rudquist, DeParcq, Perl, Hunegs, Rudquist & Koenig, P.A., Minneapolis, for appellant.

James F. Roegge, Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, Minneapolis, for respondent.

Heard, considered and decided by PARKER, P.J., and LANSING and HUSPENI, JJ.

OPINION

HUSPENI, Judge.

Appellant Francis L. Dennie appeals from judgment entered for respondent Metropolitan Medical Center (Metropolitan) and denial of Dennie's motion for a new trial both of which resulted from the trial court's suppression of Dennie's expert witness testimony and its subsequent dismissal with prejudice of Dennie's cause of action for failure to present a prima facie case. We reverse and remand for trial.

FACTS

This is a medical malpractice action. Dennie alleges that, while hospitalized at Metropolitan for surgery, a nurse employed by Metropolitan negligently administered an intramuscular injection into Dennie's left buttock, causing permanent injury to his sciatic nerve.

Dennie commenced this action on November 24, 1980. His counsel failed to respond to interrogatories served by Metropolitan on January 9, 1981. Dennie's counsel also failed to appear at a hearing on October 19, 1981 brought by Metropolitan to compel discovery.

The trial court issued the following order on October 19, 1981:

That Plaintiff shall serve executed answers to Defendant's Interrogatories and otherwise respond to Defendant's Request for Production of Medical Reports, Medical Authorizations and Statements within 15 days of this Order; that in the event Plaintiff fails to comply with the provisions of this Order, Defendant may, without further notice, have entry of judgment of dismissal with prejudice of Plaintiff's Complaint herein upon notification to the Court of Plaintiff's failure to comply with this Order.

Dennie executed answers to the interrogatories as ordered. In those answers, he stated that Dr. Harold Noran, one of Dennie's treating physicians during his hospitalization, would testify that the injection was carelessly given and precipitated Dennie's sciatic condition. This answer was given in reliance on prior statements allegedly made by Dr. Noran.

In a deposition in April 1982, Dr. Noran denied that the injection had been negligently given. Dennie asserts the change in Dr. Noran's medical opinion was in part motivated by his apprehension that to testify against Metropolitan would jeopardize his staff privileges at the hospital. He also maintains that subsequently a number of prominent neurologists in the Metropolitan area refused to testify as an expert witness for him, citing a reluctance to testify against Metropolitan.

On August 6, 1982, the case was certified as ready for trial pursuant to Special Rule 4.01 of the Fourth Judicial District. Dennie's counsel did not file a certificate of nonreadiness for trial.

The counsel responsible for Dennie's case left the firm, and new counsel was assigned. The new counsel contacted Metropolitan's counsel on June 16, 1983 by phone, informed him that she was the new counsel, and requested a stipulation that discovery be reopened. This request was refused. A subsequent request made in December 1983 was also refused. At that time Dennie's counsel indicated to Metropolitan's counsel her continuing difficulty in obtaining an expert willing to testify against the hospital, but indicated an intention to inform Metropolitan as soon as an expert was retained. On February 8, 1984, Metropolitan's counsel was served Dennie's statement of the case which listed Steven Laven, R.N. and a "neurologist yet to be named" as expert witnesses for Dennie.

Dennie's counsel made an oral motion to reopen discovery at the pretrial settlement conference on February 14, 1984. This motion was denied for lack of notice. Ultimately, the case was set for trial the week of June 18, 1984. On June 11, 1984, Dennie served upon Metropolitan supplemental answers to interrogatories which listed John Tulloch, M.D. as an expert witness. Dr. Tulloch had agreed to review Dennie's medical records in late May 1984. Dennie's counsel states she received a preliminary report regarding the records on June 1, and a subsequent report on June 5. Dennie's counsel was unable to meet with Dr. Tulloch until several days later. Apparently, no contact was made with Metropolitan's counsel until after that meeting.

The case was called out for trial on June 19, 1984. Metropolitan moved to suppress the testimony of Dr. Tulloch and Nurse Laven on the grounds that Dennie's answers were untimely and inadequate. Prior to this time, Metropolitan had never requested leave to depose either Laven or Tulloch. The trial court denied the motion and ordered Dennie to produce Laven and Tulloch that day for depositions. Dennie was also ordered to pay the full cost of the depositions, including Metropolitan's attorney's fees.

Laven was deposed the afternoon of June 19. He testified that he was employed as a full-time legal assistant by the law firm representing Dennie. (Laven began working on Dennie's case in late 1983. Sometime after that, he was hired as a paralegal for the law firm representing Dennie. Dennie was unable to find another nurse to testify for him.) When Laven was asked to list the materials he had reviewed in formulating his opinions, he was instructed not to answer because such would involve work product. Requests by Metropolitan to produce the medical records Laven had reviewed were refused on the grounds that notations had been made on the records by Dennie's counsel. ¹ Disclosure of a letter-report Laven wrote for Dennie's counsel in November or December of 1983 was also refused on the grounds that the letter-report was prepared in anticipation of litigation and, therefore, was outside the scope of discovery.

Tulloch was deposed the evening of June 19. During the deposition, Metropolitan's request to produce a May 28 letter of Dr. Tulloch was refused. Dr. Tulloch was also instructed not to answer questions regarding that letter. Dennie's counsel claimed the letter was work product. Dr. Tulloch did testify that the opinions he had previously reported in that letter were identical to those given at the deposition, i.e., that Dennie's symptoms were caused by the allegedly negligently-administered injection.

On June 20, 1984, Metropolitan renewed its motion to suppress the experts' testimony on the grounds previously stated. Additionally, Metropolitan sought dismissal due to Dennie's alleged deliberate and tactical obstruction of the depositions and discovery of the previous day. Dennie offered the documents at issue to the trial court, asking for an in camera inspection. The trial court originally refused, then reviewed the letter from Dr. Tulloch. The trial court found the opinions contained within the letter to be inconsistent with those expressed at Tulloch's deposition. The court then ruled that all the documents should have been disclosed to Metropolitan's counsel and ordered the expert testimony suppressed.

Metropolitan then moved to dismiss the complaint. Dennie made an offer of proof, arguing that the case could still go forward by an application of the doctrine of res ipsa loquitur. The trial court ruled that, without the testimony of Laven and Tulloch, Dennie could not present a prima facie case and dismissed the complaint.

In its memorandum accompanying the order denying Dennie's motion for a new trial, the trial court acknowledged that this was a severe sanction. The trial court in supporting its decision stated:

In the peculiar circumstances of the case, the very nature and objectives of discovery were circumvented. Regardless of the reasons, the result was that the Defendant was unable to determine what the substance of the testimony was to be and was precluded from preparing an adequate defense. For this reason, the Court excluded the Plaintiff's experts. Without the expert testimony, the Plaintiff was unable to present a prima facie case. * * * This Court prefers to decide cases on their merits rather than by summary disposition. It was clear that because of the peculiar facts of this case, including the way discovery was handled, and the manner in which the Defendant was precluded from obtaining sufficient information about the expert testimony, this was one of those rare cases in which the interests of justice were best served by summary disposition.

ISSUES

Did the trial court err when it suppressed the testimony of appellant's expert witnesses and subsequently dismissed appellant's cause of action with prejudice?

ANALYSIS

In Firoved v. General Motors Corporation, 277 Minn. 278, 152 N.W.2d 364 (1967), the Minnesota Supreme Court reversed a trial court's pretrial dismissal of plaintiff's action on the merits, noting:

Since a dismissal with prejudice operates as an adjudication on the merits, it is the most punitive sanction which can be imposed for noncompliance with the rules * * *. The primary factor to be considered in determining whether to grant a dismissal with or without prejudice is the prejudicial effect of the order upon the parties to the action * * *. Obviously, the prejudice to plaintiff of such a dismissal is certain and usually permanent. As to defendant, the ordinary expense and inconvenience of preparation and readiness for trial, which can be adequately compensated by the allowance of costs, attorney's fees, or...